Using the Internet to Circumvent Decency Regulation

As widely reported, NBC recently placed a version of a parody music video called “My Dick in a Box” on YouTube (enjoy it here) after having played the video on the broadcast version of Saturday Night Live with the word “dick” repeatedly bleeped out. This story raises many interesting questions, such as: How exactly does bleeping the word “dick,” when it is obvious from the context that this word (or perhaps an even more profane synonym) is being uttered, protect anybody’s sensibilities? And does anybody actually watch Saturday Night Live anymore? I’ll put these questions aside to get to a legal issue.

The news stories I’ve seen say that NBC put the uncensored version on YouTube as a way to circumvent FCC regulation, but this is perplexing. The relevant FCC reg (which you can find at 47 C.F.R. § 73.3999) states:

(a) No licensee of a radio or television broadcast station shall broadcast any material which is obscene.

(b) No licensee of a radio or television broadcast station shall broadcast on any day between
6 a.m. and 10 p.m. any material which is indecent.

Saturday Night Live airs after 10 p.m., and is thus subject only to the obscenity ban. Whatever else you might say about the lyric “my dick in a box,” it certainly doesn’t count as obscene under the Miller test.

The key here, I think, is that the relevant federal statute (which you can find at 18 U.S.C. § 1464), bans broadcast indecency regardless of what time it airs. It provides:

Whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined under this title or imprisoned not more than two years, or both.

(Television broadcasts count as “radio communications” under the Act.) So NBC was not worried about running afoul of the FCC but of Congress. Want to bet that the new Democratic Congress does nothing to reassure broadcasters that they won’t have to go to prison for uttering the word “dick?”